Home Articles posted by Eyal Benvenisti

Will the Asian Vision of International Law become Dominant in 2017?

Published on January 16, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.

Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.

Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.

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Why Should States Be Viewed as “Trustees of Humanity” and What Could Be the Implications?

Published on September 3, 2013        Author: 

Eyal BenvenistiEyal Benvenisti, LL.B (Jerusalem) 1984, LLM (Yale) 1988, JSD (Yale) 1990, is Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University Faculty of Law.

To whom are sovereigns accountable? In 1609 King James I offered Parliament his answer. Starting from the premise that the “[e]state of the monarchy is the supremest thing upon earth,” he equated kings to gods, because “they exercise a manner or resemblance of divine power upon earth.” Kings have absolute power and authority, “and yet accountable to none but God only.” A year later, Sir Edward Coke, then the Chief Justice of the Court of Common Pleas, handed down two judgments that contested King James’s vision. In Coke’s view, “the King cannot change any part of the common law … without Parliament” (Case of Proclamations), and even Parliament is not supreme but “controlled” by the common law (Dr. Bonham’s Case). This debate about the internal accountability of governments has drawn the attention of political philosophers and marked the evolution of domestic constitutional and administrative law ever since.

But to whom is the sovereign state as a whole accountable? Can we be satisfied with Coke’s focus on only the domestic aspect of officeholders’ accountability? Shouldn’t famine in food-importing countries count as a relevant consideration when a government considers limiting the export of grains to those countries? Shouldn’t the Indian Parliament or court take into account the adverse effects of IP regulation on foreigners whose lives depend on generic drugs made in India? It is, perhaps, the intensity of that internal debate about the limits of sovereign authority which has eclipsed an even older discourse concerning the external accountability of sovereigns. The idea that the state itself is inherently limited by obligations owed to other states and to humanity at large has a longer pedigree than the King James-Coke exchange, dating back to Stoic thinkers. As the modern concept of sovereignty began to take shape, this view of the state’s external accountability was revived by Grotius, and later by Wolff and Vattel. Despite their efforts, however, and perhaps because national governments were busy solidifying their internal authority and shielding it from the Church and other external contenders, the notion of external limitations on state sovereignty failed to gain traction.

In an era marked by extensive economic integration, diminishing resources and shrinking space, when sovereigns routinely regulate resources that are linked in many ways with resources that belong to others, even Coke’s promise of internal accountability of sovereigns leaves much to be desired. Read the rest of this entry…